MUHAMMAD ARSHAD vs THE STATE

1. ' MUHAMMAD AFZAL ZULLAH, CJ.---This appeal through leave of the Court is directed against the appellate judgment by the High Court in a case of murder under section 302, P.P.C. The appellant's conviction for murder was upheld but the sentence of death was reduced to imprisonment for life.

2. Leave was granted to examine the following features:-- "2. There is no doubt that Muhammad Rafique died of Chhuri injuries as proved by the prosecution.

3. However, the question is, whether it would be safe to rely on the evidence of Ghulam Sarwar, P.W.6, and Muhammad Siddique, P.W.7, the brothers of the deceased when the only independent witness Rashid Ahmad, P.W.8, produced by the prosecution, has not supported the prosecution case. The prosecution was allowed to cross-examine Rashid Ahmad, P.W.8, and in the cross-examination he denied that Ghulam Sarwar, P.W.6, and Muhammad Siddique, P.W.7, were present in the house at the time of occurrence. On the contrary, according to him, the wife of the deceased and other family members were present but none of them has been examined. Moreover, according to the prosecution, another witness, who was attracted by the hue and cry raised by Ghulam Sarwar, P.W.6, and Muhanimad Siddique, P.W.7, namely, Bashir Ahmad has also not been produced. The evidence of Rashid Ahmad, P.W.8, has not been considered by the High Court."

4. As indicated in the order, the deposition of Rashid Ahmad, P.W.8, was not properly analysed by the High Court. We, with the help of the learned counsel, have gone through the same. Undoubtedly, he appears to be an independent witness. Not only this, from examination-in-chief and the cross- examination by the State as well as by the defence, it appears that he did not pursue the same line as was expected from him by the prosecution. It is also not a case of a hostile witness in the classical sense. It appears that from the very beginning his position was that he reached the spot soon after the occurrence on hearing the noise. The Chhuri blows had already been inflicted and it appears that before his arrival, the assailant had already completed the job of causing the injuries.

5. But, at the same time, it also appears that he was perhaps the first to arrive at the scene and the accused-appellant was still present there. On his arrival, he saw the accused. In cross- examination, it was suggested to him 'that the accused was weeping and was saying that Shabbir had killed his father'. The witness, strongly, denied this suggestion. At the same time, he denied the suggestion put to him by the Public Prosecutor that the other two eye-witnesses, who were brothers of the deceased, were present and that he saw them. Thus, this person is not only an independent witness, but has also tried to keep balance and to tell the truth. His entire testimony has a ring of truth around it. That being so, it would be safe to exclude the testimony of the two alleged eye-witnesses Muhammad Sarwar, P.W 6, and Muhammad Siddique, P.W.7, who are not only interested witnesses and real brothers of the deceased, but also were residents of a place at some distance from the house of the deceased. Their presence at the time of occurrence also las not been adequately explained.

6. However, the matter would not end here. Rashid Ahmad, P.W.8, who has been adjudged as an independent and truthful witness and whose testimony has also a ring of truth, has deposed positively against the appellant regarding the recovery of the weapon of offence which was found to have been stained with humand blood. It was recovered at the instance of the appellant. The rece very has been believed by both the Courts below. This recovery can safely be taken into consideration in the facts and circumstances of this case as a very strong piece of evidence against the appellant. Not only this, he, a male member of the family of the deceased, was an inmate of the house where the murder took place. It was for him to explain or satisfactorily put forward a reasonable hypothesis for the deceased having been murdered in the same house. Not only this, he was present in the house immediately after the occurrence when Rashid Ahmad, P.W.

7. Arrival there. There is another strong circumstance which goes against the appellant; namely, that he tried to put up a false defence regarding his conduct immediately after the occurrence, namely, that he was weeping and he was naming another person as culprit. Rashid Ahmad, P.W. Has deposed that he was not weeping and that he had not accused anybody else. Accordingly, it can safely be assumed that it is an afterthought of the appellant to name somebody as culprit, otherwise immediately after the occurrence, he did not name anyone else. Such a conduct as also his other acts immediately after the occurrence, can be taken note of as highly relevant factors under sections 6, 7 and 8 of the Evidence Act.

8. Lastly, it is in the testimony of Rashid Ahmad, P.W. That at the time of his arrival, the mother of the appellant was also present in the house. She had married the deceased after her marriage with the father of the appellant. Even she did not come forward to plead for her son and depose about his innocence. All these circumstances furnish sufficiently strong material which could safely be treated as enough under the definition of the word 'prove' in section 3 of the Evidence Act so as to come to a conclusion that the appellant, being the culprit, is 'so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists'.

9. This approach of reliance on the circumstantial evidence in case;. Either the direct evidence is not forthcoming or has not been found satisfactory, has the support of authorities wherein the definition of the word `proved' as contained in the Evidence Act has been relied upon. See Muhammad Ashraf and others v. The State PLD 1983 SC 216, State v. Habibur Rahman and others PLD 1983 SC 286, and Said Wali v. Yaqoot Khan and another PLD 1983 SC 440.

10. ' The afore-discussed features of the case and analysis thereof also find support from the well- known case of Billmoria alias Muhammad Hussain v. The State PLD 1958 SC 313. This case has again been recently relied upon by this Court in the case of Muhammad Aslam v. Muhammad Zafar and 2 others PLD 1992 SC 1.

11. The result of what is stated is, that even after the exclusion of the statement of the eye-witnesses, there is enough evidence in this case to sustain the convicton of the appellant for the offence under section 302, P.P.C. He has already been allowed the benefit of lesser sentence by the High Court. Accordingly; this appeal fails and is dismissed.

12. Appealdismissed.